Supreme Court to hear Coca-Cola “cat’s paw” case

An AP story on Monday reported that the Supreme Court will hear the Coca-Cola “cat’s paw”case I discussed back in July in a post entitled: “Cat’s Paws, Rubber Stamps, and Proof of Race Discrimination.”
The case is BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC, and here’s the decision of the 10th Circuit Court of Appeals in favor of the EEOC.

The 10th Circuit summarized the case as follows (if only all courts were so concise and direct in introducing their opinions):

The . . . EEOC asks us to reverse the district court’s decision granting summary judgment to BCI Coca-Cola Bottling Co. of Los Angeles (“BCI”) on a claim of race discrimination arising from the termination of a black employee, Stephen Peters. It is undisputed that the human resources official who made the decision to terminate Mr. Peters worked in a different city, had never met Mr. Peters, and did not even know that he was black.

In making the decision to terminate, however, the human resources official relied exclusively on information provided by Mr. Peters’ immediate supervisor, who not only knew Mr. Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.

Because we find that genuine issues of material fact exist as to whether BCI’s proffered explanation for the termination is a pretext for racial discrimination, we reverse the decision of the district court and remand for further proceedings.

Here’s the “Question Presented” as stated in the Supreme Court docket:

Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no
discriminatory motive toward the impacted employee.

The EEOC’s Brief in Opposition to the petition for certiorari suggest its possible tack:

Although there is a circuit conflict on that issue, that conflict is not as extensive as petitioner asserts. In any event, this case would constitute a poor vehicle for resolution of that conflict because it arises in an interlocutory posture (and it is therefore unclear whether resolu tion of that conflict would affect the outcome of this case). Further review is therefore unwarranted. . . .

All of the courts of appeals to have considered the issue have held that an employer can be liable . . . based on the alleged bias of . . . an employee who did not personally take the adverse employment action. . . .

In determining whether an employer should be held liable on a theory of subordinate bias, most of the courts of appeals, like the court of appeals in this case, have focused on the causal connection between the alleged bias and the adverse employment action. . . .

To be sure, those courts of appeals have phrased the relevant inquiry in various ways, such as whether the subordinate employee had “influence” on the decisionmaking process . . . or whether the subordinate employee was “involved” in that process . . . . But the thrust of the inquiry under any of those formulations is whether there was a causal connection between the alleged bias and the adverse employment action.

While petitioner contends that those courts “widely differ[]” on the appropriate standard for subordinate- bias liability, . . . those courts do not appear to be in genuine conflict with each other, because the slightly different formulations used . . . would not necessarily lead to different results in any given case.

Because the Court granted cert., it may appear that it will not buy these arguments. But the number of votes needed to grant cert. (4) and the number needed for a majority (5) differ, so if only 4 voted for cert and the other 5 bought the EEOC’s arguments, these arguments could find their way into a majority opinion ruling in favor of the EEOC without a dramatic pronouncement of new law — or meaningful clarification of the varying “standards” expressed by various Courts of Appeal.

Why is this issue important?

Because the scenario found in this case is a common one. Discrimination cases often include allegations that a lower-level supervisor made discriminatory remarks. Courts often look past such evidence by finding insufficient connection between the supervisor and the ultimate employment decision, and therefore characterizing the allegations as merely involving “stray remarks.”

Such characterizations are, of course, helpful to employers defending discrimination cases, and as such a lawyer I have often argued the “stray remark” doctrine. A sweeping Supreme Court decision supporting the EEOC and the 10th Circuit could potentially constrict this doctrine by making fewer remarks of lower-level supervisors “stray.”

So what do I predict?

A decision that, whichever way it goes, does not dramatically alter the legal landscape in this area. The Court will say it’s resolving the Circuit split and clarifying the law, but it is now conservative enough to avoid a broad ruling and focus on the facts before it. And it will fully understand the litigation can of worms that would be opened if every alleged discriminatory remark by a low-level supervisor became evidence of discrimination, even though the ultimate decision was made by another.

See also NashvillePost.com: “U.S. Supreme Court will hear Nashville lawyers’ argument,” quoting lawyer for the employer:

[T]he justices’ review could lead to a single standard being employed among the nation’s 12 federal circuit courts, and, if unfavorable toward employers, that standard could mean that human-resources and other executives operating at a remove from disputed incidents would be more vulnerable to charges their decisions were influenced by subordinate employees’ discrimination.

One result could be a greatly increased need to investigate each allegation, exhaustively.

Photo credit: K’vitsh via flickr